At a disadvantage

Labour & European Law ReviewWeekly Issue 37816 July 2014

When claiming indirect discrimination, workers have to show that their employer applied a provision, criterion or practice that put them at a particular disadvantage. In Essop and ors v Home Office (UK Border Agency), the Employment Appeal Tribunal (EAT) held that they do not also have to show why they suffered that disadvantage.

The PCS instructed Thompsons to act on its members’ behalf.

Basic facts

A number of civil servants alleged that black and minority ethnic (BME) candidates over the age of 35 were systematically less likely than non-BME and younger candidates to pass a Core Skills Assessment (CSA) that was needed to gain promotion within the Civil Service.

They lodged test claims for indirect discrimination on the grounds of race and age contrary to section 19 of the Equality Act 2010.

Relevant law

Section 19 states that there is indirect discrimination if an employer applies a “provision, criterion or practice” (PCP) to a relevant characteristic which puts workers who share that characteristic at a particular disadvantage compared with those who do not.

Tribunal decision

At a pre-hearing review the tribunal judge found that there was a “particular disadvantage” facing BME and older candidates as a result of the PCP imposed by the employer. That is, requiring candidates to pass the CSA before they could be promoted.

However, the judge said that each civil servant also had to prove the reason why they, individually, failed the CSA test in order to show that they had actually suffered from that “particular disadvantage”. Otherwise an employer would be faced with having to justify a PCP which had not in fact had any adverse impact on the claimant in question, thereby allowing individuals to benefit from "a statistical fluke”.

The claimants appealed, arguing that none of them could prove why they failed the test as they did not assess nor score their test papers. Only their employer would have that information, and even they might not appreciate why or how the CSA had the sustained and significant adverse effects on BME candidates which it clearly did.

EAT decision

The EAT held that the starting point must always be the words of the relevant statute. As the wording of section 19 did not require members of a disadvantaged group to show why they had suffered the disadvantage (in addition to proving that they had), the claimants could not be required to prove something that the law did not require.

Domestic legislation also had to be interpreted as far as possible to conform with EU law. As EU law took a “purposive” approach, the court had to ask whether construing the legislation in this way advanced the broad purpose of the legislation or impeded it. In this case, it was clear that, by requiring additional proof, the purpose of the provision (eliminating the adverse effect of “disguised” discrimination) was being hindered.

The EAT said that employers could ensure that the claims of unmeritorious claimants did not succeed by proving that the PCP was objectively justified. In other words, that it was a proportionate means of achieving a legitimate aim.